Rule 107.Briefs; letter memoranda

How many, and where. The original and a copy of every brief and letter memorandum are filed with the Clerk of the county where the case is pending, and the Clerk delivers the original to the judge. If more than one judge will sit at the argument, enough copies must be filed for each of them. A copy of any letter from counsel to the court that contains argument goes to the Clerk to be filed in the cause.

That last sentence is the important one. Argument by letter is still argument, and it belongs on the docket where the other side and any reviewing court can see it. Nothing reaches a judge privately.

When. Unless the court orders otherwise, briefs and letter memoranda are filed and supplied to opposing counsel not less than 5 days before the argument they relate to.

What they look like. Each brief carries the name of this court, the title and number of the case, and the names and addresses of counsel for the party filing it, with office addresses for any counsel who live outside the State. Briefs may be printed, typed or handwritten, reproduced by any process that gives a clear black image on opaque, unglazed white paper; carbon copies need the court's permission; printed matter must be at least 11 point type.

Handwritten is on that list deliberately. This is a court where many people appear without a lawyer, and the rule sets a standard of legibility rather than a standard of equipment.

Pages and margins. Briefs are firmly bound at the left margin. Printed briefs have pages of approximately 7 by 9 ½ inches; briefs produced any other way have pages not exceeding 8 ½ by 11 inches, double spaced except for quotations and footnotes, with side margins of not less than 1 ½ inches. Text may appear on 1 side of the page or both, so long as it stays legible.

Citations. The rule prescribes the citation style, using the uniform citation manual it names, and drops references to the old State Reporter System and parallel citations. It then supplies worked examples for reported opinions, for unreported Delaware opinions and orders, and for cases available only through the computer research services — each with its own form. Consistent citation is not fussiness: it is how a judge finds the case you are relying on.

The order of a brief. A table of contents or index; a table of citations arranged alphabetically with the pages where each authority appears; in a party's first brief, a statement of the case setting out the nature of the proceedings and a concise chronological narrative of the relevant facts, with page references to the transcript, pleadings and exhibits; a statement of the questions involved; and argument divided into sections under headings, one section per question.

Read that list as a discipline rather than a formality. Facts with page references cannot be invented, and one section per question stops an argument sprawling.

Length. Without leave of court, an opening or answering brief may not exceed 35 pages and a reply brief 20 pages, exclusive of the appendix. The table of contents and the table of citations do not count against the limit; the statement of the case, the questions involved and the argument do.

Unreported opinions. Cite one and you must attach a copy and state the file number. If it does not contain enough facts to show why it is pertinent, attach a statement of the facts as well. Where the citation first appears in a reply brief, the opposing party may discuss the opinion at oral argument or, on prompt application, in writing — so a case cannot be sprung in the last brief.

If a brief never comes. Where a brief or letter memorandum is not served and filed on time and in the manner required, the court may in its discretion dismiss the proceeding if the petitioner is in default, treat the motion as abandoned, summarily deny or grant it, or take whatever other action will expedite the case. Late filing may be permitted on a showing of good cause in writing. The rule does not disturb any other rule that fixes its own time for motions and their supporting papers.